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CIV\APN\231\92

IN THE
HIGH COURT OF LESOTHO

In the
matter between:

BERNICE
MAKOETLANE Applicant

and

COMMISSIONER
OF POLICE lst Respondent

'MAPULA
PAULINA MOKETE 2nd Respondent

ATTORNEY-GENERAL
(N.O.) 3rd Respondent

JUDGEMENT

Delivered
by the Honourable Mr Justice J.L. Kheola on the 14tb day of March.
1994

The
applicant seeks an order that the first respondent pay to her the sum
of M25,000-00, as the death beneficiary of the late Francis
P.
Makoetlane; that the said monies should not be paid to the second
respondent That the second respondent be ordered to pay to
the
applicant the sum of money amounting to M4,837-51 and costs of suit.

In her
founding affidavit the applicant deposes that the late Francis Pitiki
Makoetlane was the son of her sister-in-law, one 'Mapitiki
Jeanette
Makoetlane who was unmarried She deposes that she was appointed the
guardian of the late Francis Pitiki

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Makoetlane
He brought him up and looked after his interests. When he joined the
Police Force he appointed her as his death beneficiary.
To the best
of her knowledge Francis never married.

One day
she was informed of the sudden and untimely death of Francis P.
Makoetlane who was stationed at Teyateyaneng She came to
Teyateyaneng
and took the dead body to Quthing where the burial took place. No one
was introduced to her as the wife of the deceased
and she alone wore
the mourning cloth.

The
applicant deposes that she was later informed that the second
respondent purporting to be the wife of the late Francis P Makoetlane

was paid and received the,sum of M3,900-00 being gratuity and also
the sum of M937-51 being compulsory savings in respect of the
late
Francis. The sum of M25,000-00 is still being held by the first
respondent awaiting the finalization of the matter as to the
rightful
claimant She deposes that the second respondent is not entitled to
the sum of money paid to her

In her
opposing affidavit the second respondent avers that she married the
late Francis P Makoetlane by customary law The applicant
and the
mother of Francis, Mapitiki Jeanette Makoetlane were present whan
payment of "bohali" was negotiated. Thereafter
she (the
applicant) lived with Francis as man and wife until he

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died She
deposes that after the death of the late Francis Makoetlane the
members of Makoetlane family did not come to TY immediately
It was
only after three weeks that the two brothers of the deceased, Lira
and Khotso came to TY The police authorities provided
transport for
the dead body to Quthing where it was buried.

The
second respondent avers that she and her mother 'Mampane Mokete
attended the burial of her husband. After the burial she was
made to
wear a mourning cloth which was removed after six (6) months
according to Sesotho custom. She avers that she and her late
husband
have a child named Bolaoana Makoetlane.

'Mapitiki
Jeanette Makoetlane has deposed that the deceased is her sou She
denies that the applicant was appointed as the guardian
of his late
son. She never abandoned her late son and was always catering for his
needs She went to work in the Republic of South
Africa for the
purpose of maintaining bis son. She has confirmed that her late son
was married to the second respondent and that
they have a child.

'Mampane
Mokete has deposed that the applicant accompanied 'Mapitiki Jeanette
Makoetlane to her home at Teyateyaneng where "bohali"
was
negotiated and agreed upon as ten head of cattle and they actually
paid three head of cattle as part of "bohali"
She

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received
the three head of cattle as the mother of the second respondent. She
confirms that she and the second respondent accompanied
the dead body
of the deceased to Quthing where the burial took place The second
respondent was made to wear the mourning cloth
by the Mekoetlane
family. After six (6) months she was brought to her home for the
removal of the mourning cloth. The deceased
and the second respondent
have a child born of their marriage.

I have
considered the evidence of the parties in the present application.
The applicant has made a bare allegation that she was
appointed as
the death beneficiary of the late Francis B Makoetlane by the
deceased himself She has not supported her allegation
with any
evidence from either the police who keep the records of the deceased
or from any member of Makoetlane family The appointment
of a death
beneficiary is a formal act which is usually documented. In the many
cases that have been decided by this Court there
is usually a
document filled by the deceased in which he appoints a certain person
as his or her death beneficiary.

In
Ramahata v. Ramahata, C. of A (CIV) No 8 of 1986 (unreported) Schutz,
P said at p.4:

"This case is a simple one The Appellant has established a
stipulation alteri

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(contract for the benefit of a third party) between the son and the
insurance company: See e.g Grace v. Grace 1940 TPD 251. The

institution of stipulation alteri, by virtue of being part of the
Roman Dutch Law, also forms part of the law of Lesotho. The contract

is to the effect that she is entitled to accept the benefit of this
contract, and the evidence is that she has in fact done so
Her rights
therefore flow from contract and the M6,000 has nothing to do with
the deceased estate For these reasons the appeal
succeeded."

In that
case there was convincing evidence that the appellant had been
nominated as the death beneficiary There was a document which
the
deceased had completed in the presence of TEBA officials. In the
present case there is no such document indicating that when
he joined
the Police Force he nominated the applicant as his death beneficiary.
Even if the applicant was unable to lay her hands
on such a document
she ought to have obtained affidavits from people who know that she
was nominated as the death beneficiary of
the deceased. Her affidavit
alone is not enough to prove this fact.

The
applicant alleges that she was appointed by Makoetlane family as the
guardian of the late Francis P. Makoetlane Again there
is not a
single member of Makoetlane family who confirms her story. The mother
of the late Francis P. Makoetlane states that it
is improbable that
she could be appointed as such while she was still alive and
maintaining his child adequately. Under Sesotho
custom the
applicant's husband could have been appointed

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the
guardian of her sister's illegitimate child In fact by our customary
law there would have been no need to appoint a guardian
because the
children of an unmarried girl automatically become the ward of the
father of the girl. If the father is already dead
the heir becomes
the ward

I have
come to the conclusion that the applicant has failed to prove that
she was appointed the death beneficiary of the late Francis
P
Makoetlane.

In the
result the application is dismissed.

J.L.
KHEOLA

JUDGE

14th
March, 1994.

For
Applicant - Mr. Monyako

For
Second Respondent - Mr. Hlaoli